(Circulated by authority of the Minister for Health and Ageing,
the Hon Nicola Roxon MP)

DENTAL
BENEFITS BILL 2008

DENTAL
BENEFITS (CONSEQUENTIAL AMENDMENTS) BILL 2008

OUTLINE

The Dental Benefits Bill 2008 and the Dental
Benefits (Consequential Amendments) Bill 2008 establish a
legislative framework for the payment of dental benefits in order
to introduce the Government’s Teen Dental Plan election
commitment. This measure is included in the 2008-09
Budget.

From 1 July 2008, the
Government will provide up to $150 per eligible teenager towards an
annual preventative check for teenagers aged 12-17 years in
families receiving Family Tax Benefit Part A (FTB(A)), and
teenagers in the same age group receiving Youth Allowance or
Abstudy. Approximately 1.1 million teenagers will
be eligible for the Teen Dental Plan each year.

The Teen Dental Plan will be administered by
Medicare Australia using client eligibility data provided by
Centrelink. The dental profession is being consulted on the
implementation arrangements for the Teen Dental Plan.

The Bills also provide a legislative framework
for payment of other dental benefits through a new Dental Benefits
Schedule (DBS). The DBS could be expanded to include other
dental benefits items in the future. The legislative
framework for the DBS is broadly modelled on relevant provisions of
the Health Insurance Act 1973 relating to the payment of
Medicare benefits.

The Dental Benefits
Bill:

· establishes an entitlement to dental
benefits;

· provides for the payment of dental
benefits;

· provides a framework for the issuing of
vouchers (for example, in respect of teenagers who are eligible for
the Teen Dental Plan);

· establishes provisions for the protection
(and, where authorised, the disclosure) of protected
information;

· creates general offence provisions
relating to assignment of benefit agreements and the giving of
false or misleading information;

· allows the Minister for Health and Ageing
to make Dental Benefits Rules under the Bill (through a legislative
instrument); and

· provides for funds relating to the
payment of dental benefits to be appropriated through a new special
appropriation.

The Dental Benefits (Consequential Amendments)
Bill makes amendments to the following Acts:

· Age Discrimination Act 2004

· A New Tax System (Family Assistance) (Administration) Act
1999

· Health Insurance Act 1973

· Jurisdiction of Courts (Cross-vesting) Act 1987

· Medicare Australia Act 1973

· Sea Installations Act 1987

· Social Security (Administration) Act 1999

· Student Assistance Act 1973

These amendments are necessary for the
implementation and administration of the Teen Dental Plan.
Some of the consequential amendments allow the payment of dental
benefits under the proposed Dental Benefits Act 2008 to be
treated in the same manner as the payment of Medicare benefits
under the Health Insurance Act 1973 .

Financial Impact
Statement

The measure enabled by these Bills has a total
cost of $490.7 million over five years. The budgeted annual
costs, which include dental benefits to patients, and
administrative costs for Medicare Australia and Centrelink to
introduce the necessary systems changes and manage the program, are
set out in the table below:

2007-08

($
million)

2008-09

($
million)

2009-10

($
million)

2010-11

($
million)

2011-12

($
million)

5.6

101.5

111.1

133.2

139.3

DENTAL
BENEFITS BILL 2008

NOTES ON CLAUSES

PART 1 - PRELIMINARY

Section 1 - Short title

This clause provides for the Bill, once
enacted, to be cited as the Dental Benefits
Act 2008.

Section 2 - Commencement

This clause provides for the Bill to commence
on the day after it receives Royal Assent.

Section 3 - Simplified
outline

This clause provides a simplified outline of
the Bill.

Section 4 - Definitions

This clause sets out definitions of terms used
in the Bill.

Section 5 - Meaning of eligible
dental patient

This clause defines ‘eligible dental
patient’ for the purposes of the Bill.

Proposed subsection 5(1) provides that an
‘eligible dental patient’, in relation to a dental
service, is:

·
a person who has been issued with a voucher under Part 4 of this
Bill;

·
an ‘eligible person’ included in a class of eligible
persons, as specified in the Dental Benefits Rules; or

·
all eligible persons if so specified in relation to a dental
service in the Dental Benefits Rules.

An ‘eligible person’ is defined in
proposed section 4 to mean an eligible person within the meaning of
section 3 of the Health Insurance Act 1973 , or a person who
is treated as such a person because of section 6, 6A or 7 of that
Act. The definition of ‘eligible person’ is
aligned with the persons who are eligible to receive, or treated as
eligible to receive, Medicare benefit.

Proposed subsection 5(2) provides that a class
of eligible persons specified in the Dental Benefits Rules may be
described by reference to the person’s age, or, by reference
to whether the person is receiving a specified pension, benefit or
allowance at a specified time or during a specified time period,
or, by reference to both of these matters. A class of
eligible persons may also be described by reference to other
matters, as specified in the Dental Benefits Rules.

The Dental Benefits Rules are a legislative
instrument to be made by the Minister under proposed section
60.

Section 6 - Meaning of dental
provider

This clause defines ‘dental
provider’ for the purposes of this Bill.

Proposed subsection 6(1) provides that a
‘dental provider’, in relation to a dental service,
means:

·
a ‘dental practitioner’ ; or

·
a person included in a class of persons specified to be dental
providers in relation to a dental service in the Dental Benefits
Rules.

The term ‘dental practitioner’ is
defined in proposed section 4 to have the same meaning as in
section 3 of the Health Insurance Act 1973 . A
‘dental practitioner’ is defined in that Act to mean a
person registered or licensed as a dental practitioner or dentist
under a law of a State or Territory that provides for the
registration or licensing of dental practitioners or dentists.

Proposed subsection 6(2) provides that the
Dental Benefits Rules may provide that a dental practitioner is not
a dental provider in relation to a dental service. This may
be necessary if the dental service is of a specialised nature.

Section 7 - Meaning of rendered on
behalf of a dental provider

This clause provides that, for the purposes of
the Bill, a dental service may be ‘rendered on behalf of a
dental provider’, but only where:

·
the dental service is rendered by another person, who is in a class
of persons specified in the Dental Benefits Rules for the purpose
of this clause; and

·
the other person provides the dental service, in accordance with
accepted dental practice, under the supervision of the dental
provider.

For the purposes of the Teen Dental Plan, it
is intended that dental therapists and dental hygienists will be
able to render services on behalf of a dental provider.

PART 2 - ENTITLEMENT TO DENTAL
BENEFITS

Section 8 - Simplified
outline

This clause provides a simplified outline of
Part 2 relating to entitlement to dental benefits.

Section 9 - Entitlement to dental
benefits

Basic Entitlement

Proposed subsection 9(1) sets out the basic
entitlement to a dental benefit. It provides that if
‘dental expenses’ are incurred in respect of a
‘dental service’ rendered in Australia to an
‘eligible dental patient’, a ‘dental
benefit’ is payable under proposed section 11 in respect of
the dental service.

The term ‘eligible dental patient’
is defined in proposed section 5. The terms ‘dental
service’, ‘dental benefit’ and ‘dental
expenses’ are defined in proposed section 4. A ‘dental
service’ means a clinically relevant service specified in an
item, being a service rendered by or on behalf of a dental
provider. A ‘dental benefit’ means a dental benefit
payable under Part 3 of the proposed Act. The term ‘dental
expenses’ means an amount payable in respect of a dental
service.

Amount payable

Proposed subsection 9(2) provides that the
amount of the dental benefit payable in respect of a dental service
is the amount specified in, or determined in accordance with, the
Dental Benefits Rules.

Proposed subsection 9(3) provides that the
amount of the dental benefit payable in respect of a dental service
must not exceed the dental expenses incurred in respect of the
dental service.

PART 3 - PAYMENT OF DENTAL
BENEFITS

Division 1 - Introduction

Section 10 - Simplified
outline

This clause provides a simplified outline of
Part 3 relating to payment of dental benefits.

This clause provides that, subject to Part 3,
dental benefit in respect of a dental service is payable by the
Medicare Australia CEO on behalf of the Commonwealth to the person
who incurs the dental expense in relation to the dental
service.

The dental benefit is to be paid in the manner
determined by the Medicare Australia CEO. This determination
may provide for, but is not limited to, payment into a bank
account. The Dental Benefits Rules may specify circumstances
or conditions relating to such a payment.

Section 12 - Assignment of dental
benefits

This clause provides for the assignment of
dental benefits, commonly known as “bulk
billing”.

Proposed subsections 12(2) to (3) provide that
the person and the dental provider who rendered the dental service,
may enter into an agreement under which:

·
the person assigns his/her right to the payment of the dental
benefit to the dental provider; and

·
the dental provider accepts the assignment of benefit as full
payment of the dental expenses incurred by the person in respect of
the dental service.

In this case, the dental provider is not
allowed to charge the person an additional fee for the dental
service.

Such an agreement must be made in accordance
with the ‘approved form’. ‘Approved
form’ is defined in proposed section 4 to mean a form
approved in writing by the Medicare Australia CEO.

Agents

Proposed subsection 12(4) provides that a
person who rendered the dental service on behalf of the dental
provider may enter into the agreement under proposed
subsection 12(2) on behalf of the dental provider, only if
authorised to do so by the dental provider.

Section 13 - Payment of assigned
dental benefits

This clause provides that, subject to proposed
section 15, the dental benefit is payable in accordance with the
assignment under proposed section 12.

The dental benefit is to be paid in the manner
determined by the Medicare Australia CEO. This determination
may provide for, but is not limited to, payment into a bank
account. The Dental Benefits Rules may specify circumstances
or conditions relating to such a payment.

Section 14 - Payment of dental
benefits to dental providers if a request is made

This clause allows a cheque to be issued in
the name of the dental provider, rather than paying the benefit to
the person, in certain circumstances. This claiming method is
similar to the ‘pay doctor cheque’ method used in
relation to Medicare benefit under the Health Insurance Act
1973 .

This clause provides that where a dental
benefit is payable to a person under proposed section 11 and
the person has not paid the dental expenses in relation to the
dental service, the person may request the Medicare Australia CEO
to issue a cheque in the name of the dental provider for the amount
of the dental benefit payable.

In this case, the dental benefit will not be
paid to the person. The cheque issued in the name of the
dental provider will be given to the person, or posted to the
address specified by the person. After the cheque is issued,
it is the responsibility of the person to provide the cheque to the
dental provider.

Division 3 - Claims for dental
benefits

Section 15 - Claims for dental
benefits

Claims for unassigned dental
benefits

Proposed subsection 15(1) provides that a
dental benefit (other than an assigned benefit under proposed
section 12) must be made in accordance with an approved form, and
be lodged with the Medicare Australia CEO, or sent to the Medicare
Australia CEO in such manner as he or she determines. The
Dental Benefits Rules may specify circumstances or conditions
relating to sending such a claim for a dental benefit.

Claims for assigned dental benefits

Proposed subsection 15(2) provides that a
dental benefit assigned under proposed section 12 must be made in
accordance with an approved form, and be lodged with the Medicare
Australia CEO, or sent to the Medicare Australia CEO in such manner
as he or she determines. The Dental Benefits Rules may
specify circumstances or conditions relating to sending such a
claim for a dental benefit. The claim for dental benefit must
be made within two years of the dental service, or a longer period
as allowed under proposed subsection 16(2).

Proposed subsection 15(3) provides that the
claim for an assigned dental benefit must not be paid unless the
claimant satisfies the Medicare Australia CEO that, after signing
the assignment agreement under proposed subsection 12(2), the
person who incurred the dental expense retained a copy of the
assignment agreement in his or her possession.

Proposed subsections 15(4) and (5) provide
that, without limiting other methods which might be chosen, the
Medicare Australia CEO may provide for a claim for dental benefit
to be sent by electronic transmission.

Section 16 - Application for a longer
period to lodge claims for assigned benefits

This clause allows a person to apply to the
Medicare Australia CEO for a longer period (that is, more than two
years after the dental service) to lodge a claim for an assigned
dental benefit. The Medicare Australia CEO may, by notice in
writing, extend the period for lodgement of the claim. In
exercising this power, the Medicare Australia CEO must have regard
to all relevant matters including, but not limited to, any hardship
that may be caused to the person if a longer period is not
allowed.

This clause is similar to section 20B of the
Health Insurance Act 1973 , which gives the Medicare
Australia CEO an equivalent power to extend the period of lodgement
for a claim for a Medicare benefit.

Division 4 - When dental benefit is
not payable

Section 17 - Dental benefit is not
payable unless particulars are recorded on the account etc.

This clause provides that a dental benefit is
not payable unless the dental provider, or an employee of the
dental provider, has recorded certain information (known as
particulars) on the relevant document/s (the account, receipt,
voucher, or assignment form). The particulars will be
specified in the Dental Benefits Rules.

This clause provides that a dental benefit is
not payable unless the conditions specified in the Dental Benefits
Rules are satisfied.

Proposed subsection 18(2) provides that the
conditions which the Dental Benefits Rules may specify may include
conditions relating to:

·
the dental service;

·
the circumstances in which the dental service is rendered;

·
the dental provider by whom, or on whose behalf, the dental service
is rendered;

·
the eligible dental patient to whom the dental service is rendered;
or

·
dental services rendered by, or on behalf of, or under an
arrangement with, the Commonwealth, a State, an internal Territory,
a local governing body, or an authority established by a law of the
Commonwealth, a law of a State or a law of an internal
Territory.

An example of a condition that could be
specified in the Dental Benefits Rules under proposed section 18 is
a condition that dental benefit is not payable in relation to
certain classes of patients, or particular types of dental
services, unless the dental benefit is ‘bulk
billed’.

Section 19 - Dental benefit is not
payable if a benefit has been received etc. under a complying
health insurance policy

This clause provides that a dental benefit is
not payable to a person in respect of a dental service where the
person has private health insurance covering the dental service and
the person has received, or chooses to receive, a benefit from
their private health insurer in respect of the dental
service.

The intention is to prevent a person from
using their private health insurance to “top-up”
a dental benefit paid under the Dental Benefits Schedule. It
is only if an insured person receives, or chooses to receive, a
benefit from their private health insurer in respect of the dental
service that dental benefit under the proposed Act would not be
payable. The same interaction between private health insurance and
Medicare benefit applies in relation to allied health services
under section 3C determinations made under the Health Insurance
Act 1973 .

Section 20 - Dental benefit is not
payable in respect of a dental service rendered as part of an
episode of hospital treatment etc.

This clause provides that a dental benefit is
not payable in respect of a dental service rendered as part of
‘hospital treatment’.

The clause also provides that dental benefit
is not payable in respect of a dental service rendered as part of
‘hospital-substitute treatment’ where the eligible
dental patient chooses to receive a benefit from a private health
insurer.

The effect of proposed section 20 is to focus
the proposed Act on situations where the dental service is not
rendered as part of hospital treatment. The wording used, including
the associated reference to hospital-substitute treatment, matches
that used in paragraph 10(2)(a) of the Health Insurance Act
1973 .

The effect of proposed subsection 21(1) is
that the Dental Benefits Rules may provide that a dental benefit is
not payable in respect of a dental service.

Proposed subsection 21(2) provides instances
where the Dental Benefits Rules may specify that a dental benefit
is not payable. These include, but are not limited to:

·
a specified dental service;

·
a dental service provided in specified circumstances;

·
a dental service rendered by, or on behalf of, a specified dental
provider;

·
a dental service rendered to a specified eligible dental patient;
or

·
a dental service rendered by, or on behalf of, or under an
arrangement with, the Commonwealth, a State, an internal Territory,
a local governing body, or an authority established by a law of the
Commonwealth, a law of the State or a law of an internal
Territory.

The purpose of proposed section 21 is very
similar to proposed section 18 (which provides that dental benefit
is not payable unless conditions specified in the Dental Benefits
Rules are satisfied). The Dental Benefits Rules may specify
similar types of instances to those addressed in sections 17, 19
and 19A of the Health Insurance Act 1973 , and in
section 18 of that Act (prior to commencement of the Health and
Other Services (Compensation) Act 1995 ) but would not be
limited to those instances.

PART 4 - DENTAL BENEFITS
VOUCHERS

Division 1 - Introduction

Section 22 - Simplified
outline

This clause provides a simplified outline of
Part 4 relating to the issuing of vouchers in relation to a dental
service.

This Part deals specifically with the issuing
of vouchers under the Teen Dental Plan, but the provisions would
also allow vouchers to be issued in respect of other eligible
dental patients and other dental services in the future.

Division 2 - Qualification for
vouchers

Section 23 - Qualification for a
voucher - teenagers

Proposed section 23 provides that a person
will qualify for a voucher under the Teen Dental Plan, if the
person:

·
is of a certain age (as set out in proposed subsection 23(1));

·
is an eligible person for Medicare purposes (as defined in proposed
section 4); and

·
satisfies the means test (as set out in proposed section 24).

A person will meet the age criteria for the
Teen Dental Plan if they satisfy either proposed paragraph 23(1)(a)
or paragraph 23(1)(b).

Proposed paragraph 23(1)(a) provides that a
person must be aged 12 to 17 years, for at least one day in the
calendar year.

Proposed paragraph 23(1)(b) covers the
situation where a person is expected to turn 12 years of age in the
calendar year, but has not yet had their 12 th birthday
at the time they qualify for a voucher.

Section 24 - When a person satisfies
the means test

This clause specifies the circumstances where
a person will satisfy the means test for the Teen Dental Plan.

Basic rule

Proposed subsection 24(1) sets out the basic
rule for satisfying the means test. A person will satisfy the
means test, at the first time in the calendar year, where the
person is:

·
receiving a payment under the ABSTUDY scheme, or another person is
receiving such a payment in respect of the person;

·
receiving youth allowance; or

·
an FTB(A) teenager (as set out in proposed subsection 24(2)).

The meaning of ‘receive’ a payment
under the ABSTUDY scheme, or in relation to youth allowance, is
defined in proposed subsections 24(3) and (4).

Proposed paragraph 24(1)(d) provides that the
Dental Benefits Rules may also specify other classes of persons as
satisfying the means test.

When a person is an FTB(A) teenager

Proposed subsection 24(2) sets out when a
person is considered to be an ‘FTB(A) teenager’ for the
purposes of satisfying the means test.

Proposed subsection 24(2) provides that, for
the purposes of this section, a person (the ‘teenager’)
is an FTB(A) teenager at a particular time if, at that time:

·
the teenager, or his or her partner, is entitled to be paid FTB(A)
at a rate greater than nil (with a ‘section 16
determination’ in force);

·
an ‘FTB recipient’ in relation to the teenager is
entitled to be paid FTB(A), in respect of the teenager, at a rate
greater than nil (with a ‘section 16 determination’ in
force);

·
the teenager, or his or her partner, has received an ‘FTB
lump sum payment’ (under Part A) in respect of the last
‘income year’ ending before the start of the calendar
year in which the teenager will qualify for a voucher;

·
an ‘FTB recipient’ in relation to the teenager has
received an ‘FTB lump sum payment’ (under Part A) that
is in respect of the teenager, and in respect of the last income
year ending before the start of the calendar year in which the
teenager will qualify for a voucher; or

·
the teenager is in a class of persons specified in the Dental
Benefits Rules to be an FTB(A) teenager for the purposes of
proposed paragraph 24(2)(e).

Proposed subsection 24(3) provides definitions
for terms used in this section.

A ‘section 16 determination’ means
a determination under section 16 of the A New Tax System (Family
Assistance) Act 1999 . This refers to the situation where
a person has been assessed as eligible to receive an FTB(A) payment
by instalment, including a person who has elected to defer the
payment of the instalment in order to avoid a potential FTB(A) debt
at the end of the financial year.

An ‘FTB recipient’, in relation to
a teenager, means a person of whom the teenager is an ‘FTB
child’ in relation to family tax benefit, or an
‘approved care organisation’ of which the teenager is a
client. ‘FTB child’ and ‘approved care
organisation’ are also defined in proposed subsection
24(3).

‘An FTB lump sum payment’ means a
payment of family tax benefit under section 24 of the A New Tax
System (Family Assistance) Act 1999 that has a Part A rate that
is greater than nil. ‘Part A rate’ is also
defined in proposed subsection 24(3).

‘Income year’ has the same meaning
as in subsection 3(1) of the A New Tax System (Family
Assistance) Act 1999 . It is a financial year.

Section 25 - Dental Benefits Rules
must specify certain matters

Proposed subsection 25(1) provides that where
a class of persons is specified in the Dental Benefits Rules as
satisfying the means test (for the purpose of
paragraph 24(1)(d)), the Dental Benefits Rules must also
specify the time, or how to work out the time, at which the person
satisfies the means test.

Proposed subsection 25(2) provides that where
a teenager is in a class of persons specified in the Dental
Benefits Rules as being an ’FTB(A) teenager‘ (for the
purpose of paragraph 24(2)(e)), the Dental Benefits Rules must also
specify the time, or how to work out the time, at which the person
is an FTB(A) teenager.

Section 26 - Qualification for a
voucher - other persons

This clause provides that the Dental Benefits
Rules may specify other classes of eligible persons who qualify for
a voucher in relation to a specified dental service. This
class (or classes) of persons could be different from the teenagers
under proposed section 23.

Division 3 - Issue of vouchers and
other matters

Section 27 - Medicare Australia CEO
must issue vouchers

This clause provides for the issue of vouchers
by the Medicare Australia CEO in relation to a person who qualifies
for a voucher.

The effect of this clause is to limit the
distribution of vouchers late in the calendar year when there would
be limited opportunity for the person to make a dental appointment
and use the voucher before it expires. However, a person, or
someone on their behalf, can still request a voucher. If the
person qualifies for a voucher, the Medicare Australia CEO must
issue a voucher up to 15 days before the end of the calendar
year.

In 2008 it is proposed that most vouchers will
be distributed during July and August, and then on a monthly basis
to newly eligible teenagers up to the end of October, for use in
that calendar year. In 2009 and later calendar years, most
vouchers will be distributed at the beginning of the calendar year,
and then on a monthly basis to newly eligible teenagers up to the
end of October, for use in that calendar year.

Persons who qualify on or before 31
October

Proposed subsection 27(1) provides that the
Medicare Australia CEO must issue a voucher for a calendar year,
if:

·
the person qualifies for the voucher on or before 31 October in the
calendar year; or

·
by another date, if an earlier or later date in the calendar year
is specified in the Dental Benefits Rules.

Subject to proposed subsection 27(5), the
Medicare Australia CEO is not required to issue a voucher if a
voucher has already been issued in relation to the person and the
dental service for the calendar year.

Persons who requests a voucher

Proposed subsection 27(2) provides that the
Medicare Australia CEO must issue a voucher for a calendar year,
if:

·
the person qualifies for the voucher; and

·
the Medicare Australia CEO is requested by, or on behalf of, the
person to issue the voucher.

Subject to proposed subsection 27(5), the
Medicare Australia CEO is not required to issue a voucher if a
voucher has already been issued in relation to the person and the
dental service for the calendar year.

Timing and form of request

Proposed subsection 27(3) provides that the
Medicare Australia CEO is not required to issue a voucher under
proposed subsection 27(2) if the request is not made in the
approved form or if the request is made within 15 days of the end
of the calendar year.

Voucher to be issued as soon as reasonably
practicable

Proposed subsection 27(4) provides that the
Medicare Australia CEO must issue a voucher as soon as reasonable
practicable after the person qualifies for the voucher or after a
request is made.

Exception to the one voucher per year
rule

Proposed subsection 27(5) provides that the
Dental Benefits rules may specify circumstances in which more than
one voucher in relation to a dental service may be issued in
respect of a person for a calendar year.

For example, where there are equal shared care
arrangements for an FTB(A) teenager, the Dental Benefits Rules may
provide for a voucher to be sent to each of the teenager’s
parents or carers. Regardless of the number of vouchers
issued in relation to the teenager, only one dental benefit is
payable for the teenager for a preventative dental check each
calendar year.

This clause provides that the Medicare
Australia CEO is not required to issue a voucher in respect of a
person who has died, even though the person has qualified for a
voucher in the calendar year.

Section 29 - When voucher is not
required to be issued - circumstances specified in the Dental
Benefits Rules

This clause provides that the Dental Benefits
Rules may specify circumstances in which the Medicare Australia CEO
is not required to issue a voucher in respect of a person, even
though the person has qualified for a voucher in the calendar
year.

For example, the Dental Benefits Rules may
specify circumstances where the teenager has been removed from a
parent or carer in a family for safety or protection reasons.

Section 30 - Voucher must specify
dental service

This clause provides that a voucher must
specify the dental service to which it relates. For the Teen
Dental Plan, this will be the annual preventative dental check.

Section 31 - Voucher remains in
effect until the end of a calendar year

This clause provides that a voucher takes
effect on the day that the voucher is issued and remains in effect
until the end of the calendar year. The Dental Benefits Rules
may provide for a different period of effect.

Section 32 - Dental Benefits rules
may provide for other matters

This clause provides that the Dental Benefits
Rules may provide for the following:

·
matters relating to requests for vouchers;

·
altering the period of effect of the vouchers;

·
the persons to whom the vouchers are to be issued;

·
lost vouchers.

PART 5 - DISCLOSURE OF PROTECTED
INFORMATION

Division 1 - Introduction

Section 33 - Simplified
outline

This clause provides a simplified outline of
Part 5 which relates to disclosure of protected information.

Division 2 - Disclosure of protected
information

Section 34 - Prohibition on
disclosure of protected information

This clause creates an offence of unauthorised
disclosure of protected information by an entrusted public
official.

Proposed section 34 provides that a person
will commit an offence if:

·
the person is, or was at any time, an entrusted public
official;

·
the person has, or has at any time had, a duty, function or power
under the proposed Dental Benefits Act 2008 ; and

·
the person discloses protected information to another person;
and

·
the disclosure is not an authorised disclosure.

The penalty is imprisonment for two years or
120 penalty units (currently $13,200), or both.

Proposed subsection 34(2) provides that the
following persons are an ‘entrusted public official’:
the Medicare Australia CEO, an employee of Medicare Australia, a
consultant engaged under section 21 of the Medicare Australia
Act 1973 , the Secretary of the Department administered by the
Minister who administers the proposed Dental Benefits Act
2008, an APS employee in that Department, or any other person
employed or engaged by that Department.

Proposed subsection 34(3) provides that
information is ‘protected information’ if the
information relates to a person other than the person who obtained
it, and:

·
the information is obtained by a person in the course of performing
duties or functions, or exercising powers, under the proposed
Dental Benefits Act 2008 ; or

·
the information was information to which the above applied and is
obtained by a person by way of an authorised disclosure under
proposed section 36.

Proposed subsection 34(4) provides that
a disclosure of information is an ‘authorised
disclosure’ if the disclosure is one that a person may make
under proposed section 35, 36, 37, 38, 39, 40 or 41.

A person obtains protected information by way
of an authorised disclosure under proposed section 36 if the
disclosure was certified by the Secretary or the Medicare Australia
CEO to be in the public interest and was made in accordance with
any requirements specified in the Dental Benefit Rules.

Section 35 - Authorised disclosure
- official duties

This clause refers to circumstances, relating
to the performance of a person’s official duties, where a
disclosure of information is an ‘authorised disclosure’
for the purposes of proposed subsection 34(4).

Proposed section 35 provides that a person may
disclose protected information if the disclosure is made:

·
in the course of performing a duty or function, or exercising a
power, under the proposed Act;

·
for the purposes of enabling another person to perform duties or
functions, or exercise powers, under the proposed Act;

·
for the purposes of enabling a person to perform duties or
functions, or exercise powers, under the Medicare Australia Act
1973 .

Section 36 - Authorised disclosure
- public interest

This clause refers to circumstances, relating
to public interest certification, where a disclosure of information
is an ‘authorised disclosure’ for the purposes of
proposed subsection 34(4).

Proposed subsection 36(1) provides that a
person may disclose protected information if the disclosure is, or
is a kind of disclosure, certified in writing by the Secretary or
the Medicare Australia CEO, to be in the public interest. A
disclosure under this subsection must be made in accordance with
any requirements specified in the Dental Benefit Rules.

A public interest certificate issued by the
Secretary or the Medicare Australia CEO is not a legislative
instrument within the meaning of section 5 of the Legislative
Instruments Act 2003 . Proposed subsection 36(2) is not
intended to create an exemption to that Act.

Section 37 - Authorised disclosure
- authorisation by affected person

This clause provides that, for the purposes of
proposed subsection 34(4), the Secretary or the Medicare Australia
CEO may disclose protected information to a person who is expressly
or impliedly authorised by the person to whom the protected
information relates, to obtain that information.

This clause refers to circumstances, relating
to the enforcement of the criminal law, where a disclosure of
information is an ‘authorised disclosure’ for the
purposes of proposed subsection 34(4).

Proposed subsection 38(1) provides that the
Secretary or the Medicare Australia CEO may disclose protected
information to an ‘agency’ if he or she believes on
reasonable grounds that the disclosure is reasonably necessary
for:

·
the enforcement of the criminal law;

·
the enforcement or a law imposing a pecuniary penalty; or

·
the protection of public revenue.

The functions of the agency must also include
that enforcement or protection and the disclosure must be for the
purposes of that enforcement or protection.

The term ‘agency’ is defined in
proposed subsection 38(2) as including a police force of a State or
Territory, or any other authority or person responsible for the
enforcement of the laws of the State or Territory.

Section 39 - Authorised disclosure
- preventing or lessening a serious and imminent threat to
the life or health of a person

This clause provides that, for the purposes of
proposed subsection 34(4), the Secretary or the Medicare Australia
CEO may disclose protected information if:

·
the Secretary or the Medicare Australia CEO believe on reasonable
grounds that the disclosure is necessary to prevent or lessen
a serious and imminent threat to the life of health of a person;
and

·
the disclosure is for the purposes of preventing or lessening that
threat.

Section 40 - Authorised disclosure
- professional body

Proposed subsection 40(1) provides that, for
the purposes of proposed subsection 34(4), the Secretary or
the Medicare Australia CEO may disclose protected information to a
‘professional body’ where that information relates to a
dental provider, or the dental services rendered by, or on behalf
of, a dental provider. The Secretary or the Medicare
Australia CEO must also believe on reasonable grounds that the
dental provider should be reported to the professional body.

Proposed subsection 40(3) defines a
‘professional body’ to mean a body responsible for the
licensing, registration, accreditation or standards of professional
conduct of dental providers generally or a class of dental
providers.

Proposed subsection 40(2) provides that this
section does not authorise the Secretary or Medicare CEO to
disclose protected information relating to a person who is a
patient of the dental provider, and from which the identity of the
person is apparent or can be reasonably ascertained, unless the
Secretary or Medicare CEO believes on reasonable grounds that it is
necessary to disclose that protected information in connection with
the reporting of the dental provider to the professional body.

Section 41 - Authorised disclosure
- administration of this Act

This clause allows protected information to be
disclosed to specified Ministers, officers and employees if it is
for the purposes of administering the proposed Dental Benefits
Act 2008 .

·
the Chief Executive Officer of ‘Centrelink’ or an
‘employee of Centrelink’;

·
a Minister who administers the proposed Dental Benefits Act
2008 , the Medicare Australia Act 1973 , the Social
Security Act 1991 (as it relates to youth allowance), A New
Tax System (Family Assistance) Act 1999 (as it relates to
‘Family Tax Benefit’), or the ABSTUDY scheme; or

The effect of this clause is to allow
protected information to be exchanged between relevant Departments
and agencies for the purposes of administering the Teen Dental
Plan. This is necessary given that protected information
relating to FTB(A), Youth Allowance and Abstudy clients is held by
Centrelink, but Medicare Australia requires this information to
identify eligible teenagers and families, distribute vouchers, and
to administer the Teen Dental Plan on an ongoing basis.

Section 42 - Disclosure of
information to courts or tribunals

This clause provides that a person is not
required, except for the purposes of the proposed Act, to disclose
protected information to a court or tribunal, or to produce a
document that contains protected information in a court of
tribunal.

Proposed clause 42(1) provides that this
section applies if:

·
a person is, or was at any time , an ‘entrusted public
official’; and

·
the person obtained protected information or a document that
contains protected information in the course of performing duties
or functions, or exercising powers, under the proposed Dental
Benefits Act 2008 .

The term ‘entrusted public
official’ is defined in proposed subsection 34(2).

This clause creates an offence of unauthorised
disclosure of protected information which was obtained through
public interest certification.

A person will commit an offence under proposed
section 43 if:

·
the person obtains protected information by way of an authorised
disclosure under proposed section 36;

·
the person discloses the protected information; and

·
the disclosure by the person is not an authorised disclosure.

The offence is punishable by a penalty of
imprisonment for two years or 120 penalty units (currently
$13,200), or both.

Section 44 - Offence -
soliciting disclosure of protected information

This clause creates an offence of soliciting
the disclosure of protected information.

A person will commit an offence under proposed
section 44 if:

·
the person solicits the disclosure of information from another
person;

·
the information is protected information; and

·
the disclosure would constitute a contravention of proposed section
34 (i.e. the disclosure would be an unauthorised disclosure of
protected information by an entrusted public official) or proposed
section 43 (i.e. the disclosure would be an unauthorised disclosure
of protected information which was obtained through public interest
certification).

The offence is punishable by a penalty of
imprisonment for two years or 120 penalty units (currently
$13,200), or both.

Section 45 - Offence - use etc.
of protected information

This clause creates an offence of soliciting,
disclosing or using protected information.

A person will commit an offence under proposed
section 45 if:

·
information is disclosed to the person;

·
the information is protected information;

·
the disclosure to the person constitutes a contravention of
proposed section 34 (i.e. the disclosure is an unauthorised
disclosure of protected information by an entrusted public
official) or proposed section 43 (i.e. the disclosure is an
unauthorised disclosure of protected information which was obtained
through public interest certification); and

·
any of the following apply:

-
the person solicited the disclosure of the information;

-
the person subsequently discloses the information; or

-
the person uses the information.

The offence is punishable by a penalty of
imprisonment for two years or 120 penalty units (currently
$13,200), or both.

Section 46 - Offence - offering
to supply protected information

This clause creates an offence of offering to
supply protected information.

A person will commit an offence under proposed
section 46 if:

·
the person offers to supply, or holds himself or herself out as
being able to supply (whether or not to a particular person)
information about another person;

·
the person knows that the information is protected information;
and

·
the supply would constitute a contravention of proposed section 34
(i.e. the disclosure would be an unauthorised disclosure of
protected information by an entrusted public official) or proposed
section 43 (i.e. the disclosure would be an unauthorised disclosure
of protected information which was obtained through public interest
certification).

The offence is punishable by a penalty of
imprisonment for two years or 120 penalty units (currently
$13,200), or both.

PART 6 - GENERAL OFFENCES AND
RECOVERY PROVISIONS

Division 1 - Introduction

Section 47 - Simplified
outline

This clause provides a simplified outline of
Part 6 of the Bill relating to general offences and recovery
provisions.

In this Part, the following offence provisions
are described:

·
A strict liability offence of failure to set out certain
particulars in an assignment of benefit agreement.

·
A strict liability offence of failure to give a copy of an
assignment of benefit agreement.

·
Two strict liability offences of making or authorising the making
of false or misleading statements in connection with claims for
dental benefit, including statements made by employees, agents or
associates.

·
Two offences of knowingly making or authorising the making of false
or misleading statements in connection with claims for dental
benefit, including statements made by employees, agents or
associates. These offences will carry a higher penalty than
the similar strict liability offences referred to above.

·
An offence of knowingly giving information that is false or
misleading.

Given the
similarities between the proposed dental benefit arrangements and
the existing Medicare benefit arrangements under the Health
Insurance Act 1973 , the offence provisions in the Bill have
been modelled on a range of offence provisions currently appearing
in the Health Insurance Act 1973 and contain penalties that
are largely consistent with the similar Health Insurance Act
1973 offence provisions.

The offences in
the Bill are aligned with current Health Insurance Act 1973
offences, to the extent possible, to ensure consistent treatment of
practitioners and patients under the proposed dental benefit
arrangements and the current Medicare benefit arrangements,
particularly in terms of the regulation of their billing and
claiming conduct.

This clause creates a strict liability offence
of failure to set out certain particulars in an assignment of
benefit agreement.

A dental provider will commit an offence under
proposed subsection 48(1) if:

·
the provider (or a person acting on the provider’s behalf)
enters into an assignment of benefit agreement under proposed
subsection 12(2) with another person; and

·
particulars relating to the dental service are required, by the
approved form, to be set out in the agreement; and

·
the dental provider has not caused the particulars to be set out in
the agreement before the other person signs the agreement.

Proposed subsection 48(2) provides that an
offence under proposed subsection 48(1) is an offence of strict
liability.

The Note after proposed subsection 48(2)
directs readers to section 6.1 of the Criminal Code , which
relevantly states that, if a law that creates an offence provides
that the offence is an offence of strict liability, there are no
fault elements for any of the physical elements of the offence and
the defence of mistake of fact under section 9.2 of the
Criminal Code is available.

Proposed subsection 48(3) provides that the
term ‘approved form’, as it appears in proposed
subsection 48(1), means the form approved for the purposes of
proposed subsection 12(2). An ‘approved form’ is
defined in proposed section 4 to mean a form approved, in writing,
by the Medicare Australia CEO.

Apart from three changes that were made to
reflect current criminal law policy, the offence in proposed
section 48 is consistent with an existing strict liability offence
in section 127 of the Health Insurance Act 1973 which
relates to the assignment of benefit agreements that practitioners
and patients may enter into under the Medicare arrangements.

The offence in proposed section 48 is
punishable by a penalty of 10 penalty units (currently
$1,100). This penalty is largely consistent with the
pecuniary penalty attached to the offence in section 127 of the
Health Insurance Act 1973 , which is a fine not exceeding
$1,000.

This clause creates a strict liability offence
of failure to give a copy of an assignment of benefit
agreement.

A dental provider will commit an offence under
proposed subsection 49(1) if the provider (or a person acting on
the provider’s behalf) enters into an assignment of benefit
agreement under proposed subsection 12(2) with another person, and
the dental provider does not cause a copy of the agreement to be
given to the other person as soon as practicable after the other
person signed the agreement.

Proposed subsection 49(2) provides that an
offence under proposed subsection 49(1) is an offence of strict
liability.

The Note after proposed subsection 49(2)
directs readers to section 6.1 of the Criminal Code , which
relevantly states that, if a law that creates an offence provides
that the offence is an offence of strict liability, there are no
fault elements for any of the physical elements of the offence and
the defence of mistake of fact under section 9.2 of the
Criminal Code is available.

Apart from three changes that were made to
reflect current criminal law policy, the offence in proposed
section 49 is consistent with an existing strict liability offence
in section 127 of the Health Insurance Act 1973 , which
relates to the assignment of benefit agreements that practitioners
and patients may enter into under the Medicare arrangements.

The offence in proposed section 49 is
punishable by a penalty of 10 penalty units (currently
$1,100). This penalty is largely consistent with the
pecuniary penalty attached to the offence in section 127 of the
Health Insurance Act 1973 , which is a fine not exceeding
$1,000.

These clauses create two strict liability
offences of making false or misleading statements in connection
with claims for dental benefit, including statements made by
employees, agents or associates.

A person will commit an offence under proposed
subsection 50(1) if the person makes, or authorises the making of,
an oral or written statement that is false or misleading in a
material particular and is capable of being used in connection with
a claim for dental benefit.

A person (the ‘first person’) will
commit an offence under proposed subsection 51(1) if:

·
the first person is an employee, associate or agent of another
person (the ‘second person’);

·
the second person makes an oral or written statement (the
‘claim statement’);

·
the claim statement is false or misleading in a material
particular;

·
the claim statement is capable of being used in connection with a
claim for dental benefit;

·
the material particular in respect of which the claim statement is
false or misleading is substantially based upon another statement
(the ‘employee statement’);

·
the employee statement was made by the first person:

-
to the second person; or

-
to an agent of the second person; and

·
the employee statement was false or misleading in a material
particular.

The offence in proposed subsection 51(1) is
intended to cover circumstances where a person makes a false or
misleading statement that is capable of being used in connection
with a claim for dental benefit, and that statement is
substantially based on another false or misleading statement made
to the person by an employee, agent or associate of the
person. In such circumstances, the employee, agent or
associate is guilty of the offence.

Proposed subsection 50(2) provides that an
offence under proposed subsection 50(1) is an offence of strict
liability. Similarly, proposed subsection 51(2) provides that
an offence under proposed subsection 51(1) is an offence of strict
liability.

The Notes after proposed subsections 50(2) and
51(2) direct readers to section 6.1 of the Criminal Code ,
which relevantly states that, if a law that creates an offence
provides that the offence is an offence of strict liability, there
are no fault elements for any of the physical elements of the
offence and the defence of mistake of fact under section 9.2 of the
Criminal Code is available.

Apart from two changes that were made to
proposed section 50 and to proposed section 51 to reflect current
criminal law policy, proposed sections 50 and 51 are consistent
with existing strict liability offences in section 128A of the
Health Insurance Act 1973 , which concern the making or the
authorising of the making of false of misleading statements
relating to claims for Medicare benefit, including statements made
by employees or agents.

Proposed sections 50 and 51 each attract a
penalty of 20 penalty units (currently
$2,200) . This penalty is largely consistent with the
penalty attached to the existing offences in section 128A of the
Health Insurance Act 1973 , which is $2,000.

Proposed subsection 50(3) provides that
despite section 15B of the Crimes Act 1914 (which would
normally impose a time limit of 12 months for the commencement of a
prosecution), a prosecution for an offence under proposed
subsection 50(1) must be instituted within three years after the
time at which the statement is alleged to have been
made. Similarly, proposed subsection 51(3) provides
that despite section 15B of the Crimes Act 1914 , a
prosecution for an offence under proposed section 51 must be
instituted within three years after the time at which the claim
statement is alleged to have been made.

Additional notes on strict
liability offence provisions

The four strict liability
offences contained in the Bill are as follows:

· Proposed
section 48 - An offence of failure to set out certain
particulars in an assignment of benefit agreement;

· Proposed
section 49 - An offence of failure to give a copy of an
assignment of benefit agreement;

· Proposed
section 50 - An offence of making or authorising the making
of an oral or written statement that is false or misleading in a
material particular and is capable of being used in connection with
a claim for dental benefit; and

· Proposed
section 51 - An offence where a person makes a false or
misleading statement that is capable of being used in connection
with a claim for dental benefit, and that statement is
substantially based on another false or misleading statement made
by an employee, agent or associate of the person. In such
circumstances, the employee, agent or associate is guilty of an
offence.

Proposed sections 48 and 49
have been cast as strict liability offences because proof of intent
to fail to comply with the requirements referred to in those
sections would be very difficult to obtain. However, failure
to comply would have a significant detrimental effect on the
administration of the proposed Dental Benefits Act 2008 and
it is important to have offences to create a deterrent to
non-compliance. The application of strict liability to
proposed sections 48 and 49 will mean that practitioners will be
placed on notice to guard against the possibility of contravening
these provisions by ensuring the accuracy of their billing
arrangements.

The proposed offences in
sections 48 and 49 will not be punishable by imprisonment but each
will attract a fine of 10 penalty units (currently $1,100).
This proposed penalty is largely consistent with the pecuniary
penalty attached to the similar existing strict liability offence
relating to Medicare benefit in section 127 of the Health
Insurance Act 1973 (which is a fine not exceeding
$1,000).

Proposed sections 50 and 51
are intended to be used in situations where there is insufficient
evidence to prove intent, but there has been significant abuse or
misuse of the dental benefit arrangements (for example, where a
practice manager repeatedly enters incorrect information on claim
forms that a dental provider later signs). These offences
have been cast as strict liability offences to deter dental
providers and their employees/agents/associates from making
incorrect or misleading claims, thereby ensuring the integrity of
the claiming arrangements under the dental benefits scheme.
The application of strict liability to proposed sections 50 and 51
will mean that dental providers and their
employees/agents/associates will be placed on notice to guard
against the possibility of contravening these provisions by
ensuring the accuracy of their claiming arrangements.

The proposed offences in
sections 50 and 51 will not be punishable by imprisonment but each
will attract a fine of 20 penalty units (currently $2,200).
This penalty is largely consistent with the penalty attached to the
similar existing strict liability offences relating to Medicare
benefit in section 128A of the Health Insurance
Act 1973 (which is $2,000).

These clauses create two offences of knowingly
making false or misleading statements in connection with claims for
dental benefit, including statements made by employees, agents or
associates.

A person will commit an offence under proposed
section 52 if the person makes, or authorises the making of, an
oral or written statement and the person knows that the statement
is false or misleading in a material particular and is capable of
being used in connection with a claim for dental benefit.

A person (the ‘first person’) will
commit an offence under proposed section 53 if:

·
the first person is an employee, associate or agent of another
person (the ‘second person’);

·
the second person makes an oral or written statement (the
‘claim statement’);

·
the claim statement is false or misleading in a material
particular;

·
the claim statement is capable of being used in connection with a
claim for dental benefit;

·
the material particular in respect of which the claim statement is
false or misleading is substantially based upon another statement
(the ‘employee statement’);

·
the employee statement was made by the first person:

-
to the second person; or

-
to an agent of the second person;

·
the first person knew that the employee statement was false or
misleading in a material particular; and

·
the first person knew that, or was reckless as to whether, the
employee statement would be used in the preparation of the claim
statement.

Apart from one change that was made to
proposed section 52 and to proposed section 53 to reflect
current criminal law policy, proposed sections 52 and 53 are
consistent with existing offences in section 128B of the Health
Insurance Act 1973 , which concern knowingly making or
authorising the making of false or misleading statements in
connection with claims for Medicare benefit, including statements
made by employees or agents.

Proposed sections 52 and 53 each attract a
penalty of 100 penalty units (currently $11,000) or imprisonment
for five years, or both. Although this penalty departs from
the Commonwealth penalty benchmarks, it is largely consistent with
the penalty attached to the existing offences in section 128B of
the Health Insurance Act 1973 , which is $10,000 or
imprisonment for five years, or both. It is considered
necessary to depart from the standard Commonwealth penalty
benchmarks in the interests of ensuring consistency with penalties
for these existing offences of a similar kind relating to Medicare
benefit. This is important because some dental practitioners
will be making claims under both the Health Insurance Act
1973 (in relation to Medicare benefits) and the proposed
Dental Benefits Act 2008 (in relation to dental
benefits).

Further, a maximum penalty of five years
imprisonment is considered appropriate for these proposed offences,
as this level of penalty will provide practitioners, their
employees, and patients with a greater disincentive to engage in
prohibited conduct associated with claiming dental benefit, thereby
preserving the integrity of the dental benefits scheme.

Section 54 - False statements
etc.

This clause creates an offence of knowingly
giving information that is false or misleading.

A person commits an offence if he or she gives
information under, or for the purposes of the proposed Dental
Benefits Act 2008 and the person knows that the information is
false or misleading in a material particular.

Apart from one change that was made to reflect
current criminal law policy, proposed section 54 is consistent with
an existing offence in section 129 of the Health Insurance Act
1973 , which concerns knowingly giving information under, or for
the purposes of, the Health Insurance Act 1973 that is false
of misleading.

The proposed penalty is 100 penalty units
(currently $11,000) or imprisonment for five years, or both.
Although this penalty departs from the Commonwealth penalty
benchmarks, it is largely consistent with the penalty attached to
the existing offence in section 129 of the Health Insurance Act
1973 , which is $10,000 or imprisonment for five years, or
both. It is considered necessary to depart from the standard
Commonwealth penalty benchmarks in the interests of ensuring
consistency with the penalty for this existing offence of a similar
kind relating to the Medicare benefit arrangements. This is
important because some dental practitioners will, for example, be
entering into assignment of benefit agreements under both the
Health Insurance Act 1973 (in relation to Medicare benefits)
and the proposed Dental Benefits Act 2008 (in relation to
dental benefits).

Further, a maximum penalty of five years
imprisonment is considered appropriate for this proposed offence,
as this level of penalty will provide practitioners, their
employees, and patients with a greater disincentive to engage in
prohibited conduct associated with, for example, billing and
claiming dental benefit, thereby preserving the integrity of the
dental benefits scheme.

Section 55 - Prosecution of certain
offences

This clause provides that offences against
certain sections of the proposed Dental Benefits Act 2008
shall be indictable offences. The clause also provides for
the circumstances in which a court of summary jurisdiction may hear
and determine proceedings in respect of those offences and the
level of penalty that the court may impose.

Proposed subsection 55(1) provides that an
offence against proposed section 52, 53 or 54 is an indictable
offence.

Proposed subsection 55(3) provides that if, in
accordance with proposed subsection 55(2), a court of summary
jurisdiction convicts a person of an offence referred to in
proposed subsection 55(1), the court may impose a penalty of:

·
imprisonment for a period not exceeding 6 months; or

·
a fine not exceeding 10 penalty units (currently $1,100).

Division 4 - Recovery of amounts paid
because of false or misleading statements

Section 56 - Recovery of amounts paid
because of false or misleading statements

This clause provides for the Commonwealth to
recover excess amounts relating to the payment of a dental benefit
where the payment was made as a result of a false or misleading
statement.

·
an amount is paid purportedly by way of a payment of dental
benefit; and

·
as a result of the making of a false or misleading statement, the
amount paid exceeds the amount (if any) that should have been
paid.

Proposed subsection 56(2) provides that the
excess amount is recoverable as a debt due to the Commonwealth from
the person who made the statement (or on whose behalf the statement
was made), or from the estate of that person.

Proposed subsection 56(3) clarifies that
proposed subsection 56(2) applies whether or not the amount
was paid to the person who made the statement (or on whose behalf
the statement was made), and whether or not any person has been
convicted of an offence in relation to the making of the
statement.

This clause provides for the Commonwealth to
be paid interest on an excess amount recoverable under proposed
section 56, where the Medicare Australia CEO has given a written
notice to the person or estate claiming the excess amount (the
‘principal sum’) as a debt due to the
Commonwealth. The amount of interest payable is
calculated in accordance with proposed subsections 57(2) to
(6).

Proposed subsection 57(2) outlines the
circumstances in which interest is payable. Interest is
payable on the amount of the principal sum that remains unpaid from
time to time if:

·
a repayment arrangement in relation to the principal sum was
entered into during the relevant period and there is a default
(whether before or after the end of the relevant period) in
repaying all or part of the principal sum as required by the
arrangement; or

·
at the end of the relevant period, a repayment arrangement has not
been entered into and all or part of the principal sum remains
unpaid.

The term ‘repayment arrangement’
is defined in proposed subsection 57(6). A repayment
arrangement, in relation to a principal sum, means an arrangement
entered into between the Medicare Australia CEO and a person, or
the person’s estate, for the repayment of the principal
sum.

The term ‘relevant period’ is
defined in proposed subsection 57(3). The relevant period is
either:

·
the period of 3 months beginning on the day after the Medicare
Australia CEO gives the written notice to the person or estate
claiming the principal sum as a debt due to the Commonwealth;
or

·
such longer period as the Medicare Australia CEO allows.

Proposed subsection 57(4) sets out the day
from which interest under proposed subsection 57(2) is payable.

Proposed subsection 57(5) provides that
interest under proposed subsection 57(2) is payable at the rate
prescribed from time to time for the purposes of
subsection 129AC(2) of the Health Insurance Act
1973 . The rate under regulation 26 of the Health
Insurance Regulations 1975 is currently 15 per cent per
annum.

Proposed subsection 57(5) provides that
interest under proposed subsection 57(2) is recoverable as a debt
due to the Commonwealth from the person or estate.

This clause enables the Medicare Australia CEO
to reduce an amount of dental benefit payable to a person if an
amount has previously been paid to the person purportedly by way of
dental benefit and the amount paid exceeds the amount (if any) that
should have been paid to the person. The amount of the
reduction is calculated in accordance with proposed subsections
58(3) to (5).

PART 7 - DENTAL BENEFITS
RULES

Section 59 - Simplified
outline

This clause provides a simplified outline of
Part 7 of the Bill relating to the Dental Benefits Rules.

Section 60 - Minister may make Dental
Benefits Rules

This clause provides that the Minister may, by
legislative instrument, make Dental Benefits Rules.

Dental Benefits Rules

Proposed subsection 60(1) provides that the
Dental Benefits Rules may provide for matters:

·
required or permitted by the proposed Act to be provided; or

·
necessary or convenient to be provided in order to carry out or
give effect to the proposed Act.

Dental Benefits Rules may confer
power

Proposed subsection 60(2) provides that the
Dental Benefits Rules may make provision for or in relation to a
matter by conferring a power on the Minister or on the Medicare
Australia CEO.

Dental Benefits Rules may incorporate
material

Proposed subsection 60(3) provides that the
Dental Benefits Rules may make provision in relation to a matter by
applying, adopting or incorporating, with or without modification,
any matter contained in any other instrument or writing as in force
or existing at a particular time, or as in force or existing from
time to time.

Proposed subsection 60(4) provides that
subsection 60(3) has effect despite anything in the Legislative
Instruments Act 2003 . The effect of proposed subsection
60(4) is to display a contrary intention for the purpose of
subsection 14(2) of the Legislative Instruments Act 2003 ,
which provides that unless the contrary intention appears, a
legislative instrument (i.e. the Dental Benefits Rules) may not
make provision in relation to any matter by applying, adopting or
incorporating any matter contained in an instrument or other
writing as in force or existing from time to time.

Proposed
subsection 60(3) may be of assistance, for example, if the Dental
Benefits Rules should refer to instruments made under State or
Territory Acts, or other documents, relating to registration,
licensing or accreditation, when specifying a class of persons to
be dental providers for the purpose of paragraph 6(1)(b) of the
proposed Dental Benefits Act 2008 .

Section 61 - Dental Benefits
Schedule

This clause provides that the Dental Benefits
Rules may provide for a Dental Benefits Schedule that sets out:

·
items specifying dental services; and

·
the amount of the dental benefit payable, or a method for
determining the amount of dental benefit payable, in respect of a
dental service.

The Note after proposed subsection 61(1)
directs readers to proposed subsection 9(3) which states that a
dental benefit payable in respect of a dental service must not
exceed the dental expenses incurred in respect of the dental
service.

Proposed subsection 61(2) provides that the
Dental Benefits Rules may set out rules for interpretation of the
Dental Benefits Schedule.

Section 62 - Specification of items
in Dental Benefits Schedule may be conditional

This clause provides that the specification of
a dental service in an item in the Dental Benefits Schedule may
be:

·
unconditional; or

·
subject to such conditions, limitation or restrictions as are
specified in the Dental Benefits Rules (including the Dental
Benefits Schedule).

These conditions, limitation or restrictions
may include, but are not limited to, imposing a monetary limit on
the amount of dental benefit payable in respect of:

·
a specified dental service;

·
dental services provided to an eligible dental patient; or

·
dental services provided to an eligible dental patient during a
specified period.

PART 8 - OTHER MATTERS

Section 63 - Simplified
outline

This clause provides a simplified outline of
Part 8 of the Bill.

Section 64 - Additional functions of
the Medicare Australia CEO

This clause provides, for the avoidance of any
doubt, that in addition to the functions of the Medicare Australia
CEO under the Medicare Australia Act 1973 , the Medicare
Australia CEO has the additional functions conferred on the
Medicare Australia CEO by or under the proposed Dental Benefits
Act 2008 . Proposed subsection 64(2) further provides that
anything done by or on behalf of the Medicare Australia CEO in the
performance of such additional functions is taken, for all
purposes, to have been done in the performance of his or her
functions under the Medicare Australia Act 1973 .

Paragraph 5(1)(c) of the Medicare Australia
Act 1973 provides that the Medicare Australia CEO has any
functions conferred on the Medicare Australia CEO under any other
Act. Section 4A of the Medicare Australia Act 1973
provides that the function of Medicare Australia is to assist the
Medicare Australia CEO in the performance of the Medicare Australia
CEO’s functions.

Section 65 - Appropriation

This clause provides that dental benefits
payable under the proposed Dental Benefits Act 2008 are
payable out of the Consolidated Revenue Fund, which is appropriated
accordingly. This standing appropriation is similar to the
standing appropriation contained in section 125 of the Health
Insurance Act 1973 in relation to Medicare benefit.

Section 66 - Delegation

Proposed subsection 66(1) provides that the
Secretary may, by writing, delegate any or all of his or her powers
or functions under the proposed Dental Benefits Act 2008 to
an SES employee or acting SES employee, in the Department.

Proposed subsection 66(2) provides that in
exercising powers or performing functions delegated under proposed
subsection 66(1), the delegate must comply with any directions of
the Secretary.

The Secretary of the Department of Health and
Ageing (as well as the Medicare Australia CEO) has certain powers
and functions relating to authorised disclosure of protected
information in accordance with Division 2, Part 5 of the proposed
Act.

It is not necessary to provide for a power of
delegation for the Medicare Australia CEO as subsection 8AC(1) of
the Medicare Australia Act 1973 provides that the Medicare
Australia CEO may, by writing, delegate to an employee all or any
of the powers or functions of the Medicare Australia CEO under
‘any other Act’, which would include the proposed
Dental Benefits Act 2008 .

Section 67 - Regulations

This clause provides that the Governor-General
may make regulations prescribing matters required or permitted by
the proposed Act, or, necessary or convenient to be prescribed for
carrying out or giving effect to the proposed Act. DENTAL BENEFITS (CONSEQUENTIAL
AMENDMENTS) BILL 2008

NOTES ON CLAUSES

Clause 1 - Short Title

This clause provides for the Bill, once
enacted, to be cited as the Dental Benefits (Consequential
Amendments) Act 2008 .

Clause 2 - Commencement

This clause provides that sections 1 to 3 of
the proposed Dental Benefits (Consequential Amendments) Act
2008 will commence on the day on which that proposed Act
receives Royal Assent. The amendments to the various Acts
listed in Schedule 1 of the Bill will commence at the same time as
the proposed Dental Benefits Act 2008 .

Clause 3 - Schedule(s)

This clause provides that each Act that is
specified in a Schedule to this Bill is amended or repealed as set
out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Bill has effect according to its
terms.

SCHEDULE 1 - AMENDMENTS

Age Discrimination Act 2004

Item 1 - Schedule 2 (after table item
3)

This item would insert a reference to section
5 and Part 4 of the proposed Dental Benefits Act 2008 into
Schedule 2 of the Age Discrimination Act 2004.

Schedule 2 relates to provisions of laws which
are exempt under subsection 39(1A) of the Age Discrimination Act
2004 . This insertion will ensure that persons determining
eligibility and implementing the Teen Dental Plan, in direct
compliance with section 5 and Part 4 of the Dental Benefits Act
2008 , will not breach the Age Discrimination
Act 2004.

A New Tax System (Family Assistance)
(Administration) Act 1999

Items 2 and 3 - section 162

Items 2 and 3 would insert a reference to the
proposed Dental Benefits Act 2008 into subsections 162(1)
and (2) of the A New Tax System (Family Assistance)
(Administration) Act 1999 .

To determine eligibility for the Teen Dental
Plan, Medicare Australia needs access to information held by
Centrelink, in relation to Youth Allowance, ABSTUDY and Family Tax
Benefit Part A, to match with Medicare information.

This amendment to the A New Tax System
(Family Assistance) (Administration) Act 1999 will allow
the provision of this information in relation to Family Tax Benefit
Part A. The amendments will authorise a person to obtain,
make a record, disclose and use protected information under the
A New Tax System (Family Assistance) (Administration) Act
1999 for the purposes of the proposed Dental Benefits Act
2008.

The operation of this amendment to allow for
data-matching is not only necessary to the administration and
implementation of the Teen Dental Plan, but may also be used for
future dental services that may be introduced under the Dental
Benefits Schedule, which rely on Family Tax Benefit Part A
eligibility.

Health Insurance Act 1973

Item 4 - Subsection 130(1)

Item 4 would insert a reference to the proposed
Dental Benefits Act 2008 into subsection 130(1) of
the Health Insurance Act 1973 .

The purpose of this
amendment is to ensure that it is clear that it would not be an
offence under subsection 130(1) of the Health Insurance Act
1973 for a person performing functions under the proposed
Dental Benefits Act 2008 to make a record of, divulge or
communicate information relating to the affairs of another person,
which was acquired by him or her in the performance of his or her
duties, or in the exercise of his or her powers or functions under
the Health Insurance Act 1973.

Jurisdiction of Courts (Cross-vesting)
Act 1987

Item 5 - Schedule

Item 5 would insert a reference to the
proposed Dental Benefits Act 2008 into the Schedule of the
Jurisdiction of Courts (Cross-vesting) Act 1987
(Cross-vesting Act). The Schedule relates to section 7 of the
Cross-vesting Act, which relates to the institution and hearing of
appeals in Federal and State Supreme courts.

The effect of the amendment would be to allow
subsection 7(5) of the Cross-vesting Act to apply, which would
require a matter arising under the proposed Dental Benefits Act
2008 to be heard on appeal by the Full Federal Court, or, with
special leave, by the High Court, rather than by the Full Court of
a State or Territory Supreme Court.

As the Health Insurance Act 1973
(relating to the payment of Medicare benefits) also appears in the
Schedule of the Cross-vesting Act, the insertion will align the
proposed Dental Benefits Act 2008 with the Health
Insurance Act 1973 .

Medicare Australia Act 1973

Items 6 to 17 would amend the Medicare
Australia Act 1973 (MA Act) to ensure that the investigative
powers of Medicare Australia may be exercised in relation to
offences contained in the proposed Dental Benefits Act
2008 .

Item 6 - section 3

Section 3 of the MA Act sets out definitions
for terms that appear in the MA Act. Item 6 would insert the
term ‘dental benefit’ into section 3 to ensure that
where the phrase ‘dental benefit’ appears in the MA
Act, the same meaning as ‘dental benefit’ in the
proposed Dental Benefits Act 2008 will apply.

Under the proposed Dental Benefits Act
2008 , a ‘dental benefit’ means a dental benefit
payable under Part 3 of the Dental Benefits Act 2008 .

Items 7 to 15

The proposed amendments contained in items 7
to 15 insert references to offences in the proposed Dental
Benefits Act 2008 into the MA Act so that they are
relevant offences for the purposes of the MA Act. This will have
the effect of triggering Medicare Australia's investigative powers
in relation to these offences.

Items 7 and 8 - subsection
3A(1)

The proposed amendments to subsection 3A(1) of
the MA Act contained in items 7 and 8 would provide that for the
purposes of the MA Act, other than Divisions 2 and 3 of Part IID, a
relevant offence is an offence against the proposed Dental
Benefits Act 2008 .

The proposed Dental Benefits Act 2008
will contain the following offences:

·
Five secrecy provision offences relating to the disclosure of
protected information:

-
an offence of unauthorised disclosure of protected information by
an entrusted public official;

-
an offence of unauthorised disclosure of protected information
which was obtained through public interest certification;

-
an offence of soliciting the disclosure of protected
information;

-
an offence of soliciting, disclosing or using protected
information;

-
an offence of offering to supply protected information.

·
A strict liability offence of failure to set out certain
particulars in an assignment of benefit agreement.

·
A strict liability offence of failure to give a copy of an
assignment of benefit agreement.

·
Two strict liability offences of making or authorising the making
of false or misleading statements in connection with claims for
dental benefit, including statements made by employees, agents or
associates.

·
Two offences of knowingly making or authorising the making of false
or misleading statements in connection with claims for dental
benefit, including statements made by employees, agents or
associates. These offences will carry a higher penalty than
the similar strict liability offences referred to above.

·
An offence of knowingly giving information that is false or
misleading.

The offence provisions in the proposed
Dental Benefits Act 2008 are modelled on the offence
provisions that currently appear in the Health Insurance Act
1973 .

The proposed amendments would also provide
that for the purposes of the MA Act, other than Divisions 2 and 3
of Part IID, certain offences against the Crimes Act 1914
and the Criminal Code which are the subject of Medicare
Australia investigatory powers in the area of Medicare benefits (as
well as other areas), would also be relevant offences in relation
to dental benefits. Specifically:

·
an offence against section 6 of the Crimes Act 1914 , or
section 11.1, 11.4, or 11.5 of the Criminal Code , that
relates to an offence against the proposed Dental Benefits Act
2008 .

Items 9 to 11 - subsection
3A(2)

Subsection 3A(2) of the MA Act provides for
definitions of relevant offence for the purposes of Division 2 of
Part IID of the MA Act. Division 2 of Part IID provides for a
general power by the Medicare Australia CEO to obtain
information.

The proposed amendments to subsection 3A(2)
contained in items 9 to 11 would provide that a relevant offence is
an offence against proposed sections 50, 51, 52, 53 or 54 of the
proposed Dental Benefits Act 2008 . This would align
the treatment of these new dental benefit offences with the
treatment of similar Medicare benefit offences contained in
sections 128A, 128B and 129 of the Health Insurance Act
1973 .

The amendments would also provide that for the
purposes of Division 2 of Part IID, certain offences against the
Crimes Act 1914 and the Criminal Code , which are the
subject of Medicare Australia investigatory powers in the area of
Medicare benefits (as well as other areas), would also be relevant
offences in relation to dental benefits. Specifically:

·
an offence against section 6, 7 or 7A or paragraph 86(1)(a) of the
Crimes Act 1914 that relates to an offence against section
50, 51, 52, 53 or 54 of the proposed Dental Benefits Act
2008 ; and

·
an offence against section 134.1, 134.2, 135.1, 135.2, 135.4,
136.1, 137.1, 137.2, 145.2 or 145.3 of the Criminal Code
that relates to a claim for payment in respect of the rendering of
a dental service.

Items 12 to 14 - subsection
3A(2A)

Subsection 3A(2A) of the MA Act provides for
definitions of relevant offence for the purposes of Division 3 of
Part IID of the MA Act. Division 3 of Part IID relates to
searches in relation to possible relevant offences and civil
contraventions.

The proposed consequential amendments to
section 3A(2A) contained in items 12 to 14 would provide that a
relevant offence is an offence against proposed sections 50, 51,
52, 53 or 54 of the proposed Dental Benefits Act 2008 .
This would align the treatment of these new dental benefit offences
with the treatment of similar Medicare benefit offences contained
in sections 128A, 128B, and 129 of the Health Insurance Act
1973 .

The amendments would also provide that for the
purposes of Division 3 of Part IID, certain offences against the
Crimes Act 1914 and the Criminal Code , which are the
subject of Medicare Australia investigatory powers in the area of
Medicare benefits (as well as other areas), would also be relevant
offences in relation to dental benefits. Specifically:

·
an offence against section 6 of the Crimes Act 1914 , or
section 11.1, 11.4 or 11.5 of the Criminal Code , that
relates to an offence against section 50, 51, 52, 53 or 54 of the
proposed Dental Benefits Act 2008 ; and

·
an offence against section 134.1, 134.2, 135.1, 135.2, 135.4,
136.1, 137.1, 137.2, 145.2 or 145.3 of the Criminal Code
that relates to a claim for payment in respect of the rendering of
a dental service.

Item 15 - subsection 3A(3)

The amendment to subsection 3A(3) of the MA
Act would provide that for the purpose of subsections 3A(2) and
3A(2A) of the MA Act, ‘dental service’ has the same
meaning as in the proposed Dental Benefits Act 2008 .

Item 16 - paragraph 8P(4)(b)

Section 8P of the MA Act allows an authorised
officer to require a person to give information or produce a
document that is in the person’s custody, or under the
person’s control, to the Medicare Australia CEO if the
authorised officer has reasonable grounds for believing that a
relevant offence or civil contravention has been or is being
committed and that the information required is relevant to the
offence or contravention.

Subsection 8P(4) provides that a patient may
be required to provide the Medicare Australia CEO with records
containing their own clinical details where those records relate to
treatment in respect of which Medicare benefits have been paid or
pharmaceutical benefits have been supplied.

The proposed amendment extends the application
of subsection 8P(4) to records relating to treatment in respect of
which dental benefits have been paid.

The proposed consequential amendments also
make an adjustment to the wording in relation to pharmaceutical
benefits. This is to ensure that the provision more
accurately reflects the definition of ‘pharmaceutical
benefit’ set out in Part VII of the National Health Act
1953 .

Item 17 - subsection 8U(5)

Section 8U of the MA Act allows an authorised
officer to conduct searches of premises, with the consent of the
occupier, if the authorised officer has reasonable grounds for
believing that a relevant offence or relevant civil contravention
is being committed, or has been committed within the previous 60
days.

Subsection 8U(5) provides that section 8U
applies to premises associated with the rendering of services
attracting the payment of Medicare benefits or with the supply of
pharmaceutical benefits.

The proposed amendment extends the application
of subsection 8U(5) to premises associated with the rendering of
services attracting the payment of dental benefits.

The proposed amendment also adjusts the
wording in relation to pharmaceutical benefits to ensure that the
provision more accurately reflects the definition of
‘pharmaceutical benefit’ set out in Part VII of the
National Health Act 1953 .

Sea Installations Act 1987

Item 18 - Schedule

This item would insert a reference to the
proposed Dental Benefits Act 2008 into the Schedule of the
Sea Installations Act 1987 , which relates to section 45 of
the Sea Installations Act 1987 . This will have the
effect of allowing the provisions of the proposed Dental
Benefits Act 2008 to apply to persons on sea installations
located in adjacent areas.

This insertion aligns with other health
benefits that apply to persons on sea installations located in
adjacent areas, as both the Health Insurance Act 1973 and
the National Health Act 1953 are included in the Schedule of
the Sea Installations Act 1987.

While services under the Teen Dental Plan are
not likely to be provided on sea installations, a consistent
approach to the payment of Medicare and dental benefits is
desirable if other patient groups and a wider range of dental
services are covered by the Dental Benefits Schedule in the
future.

Social Security (Administration) Act
1999

Items 19 and 20 - section 202

Item 19 would omit all the words appearing
after ‘security law’ in subsection 202(1) of the
Social Security (Administration) Act 1999 , and substitute
‘, the Farm Household Support Act 1992 , the Dental
Benefits Act 2008 or the Family Homelessness Prevention and
Early Intervention Pilot’.

Item 20 would omit ‘or the Farm
Household Support Act 1992 ’ in subsection 202(2)(d) of
the Social Security (Administration) Act 1999 , and
substitute ‘, the Farm Household Support Act
1992 or the Dental Benefits Act 2008 .’

Items 19 and 20 would effectively insert a
reference to the proposed Dental Benefits Act 2008 into
subsections 202(1) and (2) of the Social Security
(Administration) Act 1999 .

To determine eligibility for the Teen Dental
Plan, Medicare Australia needs access to information held by
Centrelink, in relation to Youth Allowance, ABSTUDY and Family Tax
Benefit Part A, to match with Medicare information.

This amendment to the Social Security
(Administration) Act 1999 will allow provision of this
information in relation to Youth Allowance. The amendment
will authorise a person to obtain, make a record, disclose and use
protected information under the Social Security (Administration)
Act 1999 for the purposes of the proposed Dental Benefits
Act 2008 .

The operation of these amendments to allow for
data-matching is not only necessary to the administration and
implementation of the Teen Dental Plan, but may also be used for
future dental services that may be introduced under the Dental
Benefits Schedule, which rely on Youth Allowance eligibility.

Student Assistance Act 1973

Items 21 and 22 - section 351

Items 21 and 22 would insert a reference to
the proposed Dental Benefits Act 2008 into subsections
351(1) and (2) of the Student Assistance Act 1973 .

To determine eligibility for the Teen Dental
Plan, Medicare Australia needs access to information held by
Centrelink, in relation to Youth Allowance, ABSTUDY and Family Tax
Benefit Part A, to match with Medicare information.

This amendment to the Student Assistance
Act 1973 will allow the provision of information in relation to
ABSTUDY. The amendment will authorise a person to obtain,
make a record, disclose and use protected information under the
Student Assistance Act 1973 for the purposes of the proposed
Dental Benefits Act 2008 .

The operation of these amendments to allow for
data-matching is not only necessary to the administration and
implementation of the Teen Dental Plan, but may also be used for
future dental services that may be introduced under the Dental
Benefits Schedule, which rely on ABSTUDY eligibility.